Tag Archives: Incompetence

In early December, the Court of Queen’s Bench of New Brunswick released a decision in Parent v. Spielo Manufacturing Incorporated2013 NBQB 393 and upheld a termination for cause. The interesting twist in this case was that the employee presented the employer with a doctor’s note putting her off on a medical leave of absence at about the same time that the employer decided to terminate. Termination occurred after the employee returned from medical leave. Stewart McKelvey’s Clarence Bennett acted on behalf of the employer, Spielo Manufacturing Incorporated.

What happened?

Parent, the plaintiff, was a five-year employee at Spielo Manufacturing Incorporated when she was terminated on March 19, 2012. Her termination occurred after a number of poor performance reviews including:

The plaintiff was advised that she rated 3.22 on a scale of one to five. In June 2009, the plaintiff went on maternity leave and in July, gave birth to a child with serious health issues. As a result, while on her maternity leave, the plaintiff, a single parent, spent a lot of time in hospitals.

In July 2010, the plaintiff returned to work, met with her supervisor and explained the difficulties she and her child were facing. Spielo accommodated by providing flexible hours so she could attend medical appointments. It was understood that the plaintiff would still be required to meet objective performance standards.

In December 2010, the plaintiff’s performance evaluation slipped to 2.94. She met with her supervisor in February 2011 and was advised that she was below the 3.0 mark required to meet expectations. The parties discussed a three-month performance improvement plan after which, another employee performance review would be done. The plaintiff failed to meet the performance standards three months later (May 2011) and was given written notice of improvement expectations. That notice advised her that she would be reviewed again in another 30 days.

On June 9, 2011, the plaintiff was given another written notice requiring immediate and ongoing improvement This letter provided for 60 days and monthly meetings.

On August 24, 2011, the plaintiff was again given notice in writing that she had to improve and meet expectations or face disciplinary action.

Her year final assessment for 2011 showed she had slipped to a score of 2.78.

Prior to meeting with her supervisor to discuss her final 2011 performance review, the plaintiff brought a note from her doctor dated January 12, 2012 saying she would be off work for six consecutive weeks following surgery on February 10. When she returned from medical leave on March 19, 2012, she was given a copy of her performance review, and advised that her employment was terminated effective that day for poor performance and inability or unwillingness to improve. The plaintiff sued for wrongful dismissal.

What did the plaintiff base her claim on?

The plaintiff claimed that the performance issue was not the real reason for her dismissal. She argued that her son’s health issues and her supervisor’s personal dislike of her after she returned from maternity leave were the real reasons.

To dismiss an employee for incompetence, the employer must show, on balance:

1) The level of performance that it required and that the level required was communicated to the employee.

2) That it gave suitable instruction to the employee to enable him to meet the standard.

3) That the employee was incapable of meeting the standard.

4) That there had been a warning to the employee that failure to meet the standard would result in his dismissal.

Applying the test to the facts in matter before him, Justice Ouellette noted that:

The plaintiff was notified of her performance problems on a regular basis.

The plaintiff was advised of specific concerns and provided with suitable instruction to allow her to meet those standards and this was also put in writing.

The plaintiff was advised that failure to meet the standard would result in dismissal.

The Court found no evidence of an ulterior motive for the termination. The Court noted that the employer had taken steps to accommodate the plaintiff and had established guidelines for her.

The Court was not prepared to find fault with the fact that the plaintiff was terminated immediately on her return from a medical leave of absence saying:

…I believe that this delay was intentional on Spielo’s behalf for obvious reasons. This decision for her dismissal was taken upon the last review being completed and this surgery had no bearing on her dismissal.

The employer had just cause to terminate and did not owe the plaintiff reasonable notice.

What does this case mean for employers?

This case illustrates what is required for just cause when dealing with an incompetent employee. When dealing with an employee who is not able to maintain the level of performance required for the job, the courts expect employers to :

Tell the employee exactly what standard is required.

Give the employee suitable instructions so that he or she can meet that standard.

If the employee continues to be unable to meet that standard, warn the employee that if he or she cannot meet the standard in a reasonable period of time he or she may be dismissed.

In this case, the employer went beyond the basic requirements and provided the employee with more than one-year to meet its continuously communicated standards. This decision provides some comfort for employers who find themselves ready to terminate, but the employee comes forward first with a medical note taking them off work before the termination is carried out. So long as the termination is unconnected to the medical leave of absence, it is okay to wait until the employee returns to work from medical leave to actually terminate the relationship.

In early December, the Court of Queen’s Bench of New Brunswick released a decision in Parent v. Spielo Manufacturing Incorporated2013 NBQB 393 and upheld a termination for cause. The interesting twist in this case was that the employee presented the employer with a doctor’s note putting her off on a medical leave of absence at about the same time that the employer decided to terminate. Termination occurred after the employee returned from medical leave. Stewart McKelvey’s Clarence Bennett acted on behalf of the employer, Spielo Manufacturing Incorporated.